## Facts

- Alaska State Troopers received a confidential informant tip that John William McKelvey III was growing marijuana on his property near Fairbanks, including reports of numerous plants in buckets moved into a greenhouse at night.
- McKelvey’s residence sat on a heavily wooded, gated property in a sparsely populated area; trees blocked ground-level views of the house and translucent greenhouse, and posted warnings indicated visitors were not welcome.
- To corroborate the tip, troopers conducted an aerial pass in a small airplane in lawful airspace at roughly 600 feet altitude and at closest about a quarter to a half mile from the house.
- Troopers used a camera with a high-powered zoom lens that magnified images about nine times beyond naked-eye viewing to photograph the area around the home.
- The photos showed buckets with green plants, but the images did not conclusively identify marijuana.
- Troopers used the tip and the aerial photos to obtain a search warrant.
- The ensuing search recovered marijuana plants, methamphetamine, scales, packaging materials, a loaded AK-47 rifle, and cash; McKelvey was charged with drug and weapons offenses.
- The superior court denied McKelvey’s suppression motion, reasoning any privacy expectation was objectively unreasonable because the property could be seen from the air.
- The court of appeals reversed and ordered suppression; the Alaska Supreme Court granted review.

## Issues

1. Whether targeted aerial photography of the curtilage using a high-powered zoom lens from lawful airspace is a “search” under the Alaska Constitution.
2. Whether a warrant is required before law enforcement uses technologically enhanced optics to conduct aerial surveillance of the area surrounding a home.
3. Whether evidence derived from a warrant obtained through such surveillance must be suppressed.

## Decision

- The Alaska Supreme Court affirmed the court of appeals and ordered suppression.
- The court held that warrantless aerial surveillance of residential property using high-powered zoom optics constitutes a search under the Alaska Constitution.
- Because the zoom-lens surveillance occurred without a warrant and was used to support the warrant application, the resulting evidence had to be suppressed.

## Legal Principles

- Under the Alaska Constitution, individuals may have an objectively reasonable expectation of privacy in the curtilage and yard surrounding a home, including in remote or screened properties where steps are taken to exclude visitors.
- Warrantless police observation is not automatically permitted merely because an area might be visible from a lawful public vantage point; the inquiry turns on the nature of the intrusion and Alaska’s privacy protections.
- Targeted aerial surveillance using technological enhancement (e.g., high-powered zoom lenses) that allows police to discern details not otherwise visible to the naked eye is materially different from casual naked-eye overflight and may constitute a search.
- Courts may interpret Alaska’s search-and-seizure and privacy provisions independently of federal Fourth Amendment minima, and may require warrants for practices that risk exposing intimate details of home life or deterring ordinary use of private outdoor spaces.
- When unlawful surveillance materially contributes to obtaining a warrant, evidence derived from that warrant is subject to suppression.

## Conclusion

The Alaska Supreme Court held that police must obtain a warrant before using high-powered zoom optics from an aircraft to conduct targeted surveillance of the residential curtilage, and it required suppression of evidence derived from a warrant supported by that unconstitutional search.


State v. McKelvey, 544 P.3d 632 (Alaska 2024)